¶1(dissenting in part). I concur in the opinion of the majority on the phases of this case apart from the *287alleged conflict. I am unable to join in their acceptance of the trial judge’s ruling that “there was no genuine conflict of interest between Sandini and Stirk” at the time Stirk was interrogated at the Marlborough police station prior to his confession. This ultimate ruling is a “mixed determination of law and fact,” Cuyler v. Sullivan, 446 U.S. 335, 342 (1980), which “may give rise to a meaningful appeal, even in a case where [the judge’s] subsidiary findings are beyond practical challenge.” Commonwealth v. Moon, 380 Mass. 751, 756 (1980).
¶2As the majority opinion notes, the judge’s subsidiary findings indicate Mr. Sandini believed he was a suspect in a first degree murder investigation at the time he and Stirk were first questioned. Indeed, the judge in his ultimate findings (labeled “conclusions of fact”) stated, “In the initial stages of the police interrogation . . . [Mr.] Sandini had been given reason to believe and did believe he was a suspect even though the police assured him he was not.”
¶3Despite the judge’s careful subsidiary findings, which I fully accept, I cannot agree with his “conclusion of fact” that Mr. Sandini knew he was not a suspect in the afternoon and, therefore, no actual conflict existed when he acted as the defendant’s legal adviser. Wholly discounting Mr. San-dini’s testimony at trial and at the supplementary hearing, that he did not consider himself free of suspicion until Stirk confessed,
¶4The crime involved was first degree murder and the connections to Mr. Sandini were substantial. The police knew that Mr. Sandini had known the victim and had driven him in his car on prior occasions. The victim was last seen alive *288in Mr. Sandini’s Chevrolet. Although Stirk admitted that he had used the automobile on the night in question, Stirk was a close associate and shared an apartment with Mr. Sandini. Even if Stirk had driven the car and was the prime suspect, there was nothing to indicate that only one person was implicated in the murder. Mr. Sandini’s knowledge that he had been home alone in bed would not carry much force if an alibi were needed. At the time of the interrogation at the police station, the crime had not yet been solved. When the officers left in the morning Stirk was not under arrest and was free to leave. This was also true in the afternoon. In fact, Stirk and Mr. Sandini were about to go home prior to Mr. Sandini’s volunteering to have his car searched.
¶5In these circumstances, I cannot but conclude that the interests of Mr. Sandini and those of Stirk were divergent. Until the crime was solved, Mr. Sandini could reasonably consider himself a suspect. Cf. United States v. Hurt, 543 F.2d 162, 167 (D.C. Cir. 1976); Commonwealth v. Duffy, 483 Pa. 170, 175 (1978). It was in his strong personal interest to have a speedy resolution of the matter, a resolution which could be achieved by an arrest and a confession. Stirk’s interests were obviously different; counsel with undivided loyalties would clearly advise against a confession. “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Escobedo v. Illinois, 378 U.S. 478, 488 (1964), quoting Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring in part and dissenting in part). See also Commonwealth v. Brant, 8 Mass. App. Ct. 558, 571 & n.7 (1979) (Brown, J., dissenting), rev’d, 380 Mass. 876, cert. denied, 449 U.S. 1004 (1980).
¶6Accordingly, it is my view that the defendant has demonstrated tensions between the interests of Mr. Sandini and himself which show an actual, relevant conflict of interest. See Commonwealth v. Michel, 381 Mass. 447, 451-452 (1980), and authorities cited. See also Commonwealth v. Hodge, 386 Mass. 165, 167-168 (1982).
¶7*289Since I am outvoted on the question of conflict, I need not decide the issues raised by the Commonwealth, particularly the issue of waiver of conflict, which may have to be decided even if an actual conflict of interest is found.
¶8 Mr. Sandini’s testimony at trial was obtained through threat of subpoena, but he testified voluntarily at the hearing on remand. He consistently took the position (rejected by the judge) that he was not the defendant’s legal adviser. The judge’s finding that Mr. Sandini acted as Stirk’s counsel is warranted by the evidence.
¶9 note that if the protections of art. 12 of the Massachusetts Declaration of Rights apply here, the defendant need not show what advice he re*289ceived from Mr. Sandini. “[H]aving established a genuine conflict of interest, [the defendant] was required to prove neither actual prejudice nor adverse effect on his . . . counsel’s performance . . . .” Commonwealth v. Hodge, 386 Mass. at 170.